So far, our war on terrorism has turned up fifteen American citizens accused of various crimes associated with the al-Qaeda network.

John Walker Lindh (“Taliban John”) was captured on the field of battle, in what amounted to an enemy uniform, bearing arms for America’s enemies.

So was Yaser Hamdi.

Jose Padilla (the alleged “dirty bomber”) was arrested at a Chicago airport, not in uniform, upon his reentry into the United States.

Six men in Lackawanna, New York (the “Buffalo Six”) were arrested in the United States. They did not bear arms, and were not in uniform.

The so-called Portland Six were arrested in Oregon, without arms and not in uniform.

Taliban John has been dealt with already. How the other alleged American terrorists are currently treated by the authorities, and what can become of them, depends on their classification under United States and international law. While there has been much confusion about this, there need not have been.

Let’s begin by getting out of the way the question of whether Taliban John could have been tried by a military tribunal, or whether any of the other fourteen can be now. Just as John Walker Lindh was not tried before a military tribunal, none of the others will be. President Bush’s order creating the tribunals expressly removed from their jurisdiction persons holding American citizenship. Until that order is amended, the fourteen current accused are protected from trial in a military tribunal. Accordingly, we need not consider any questions concerning the many interesting aspects of military tribunals.

Next, we have to look at a decision of the Supreme Court of the United States that, in large part, controls the government’s treatment of every American citizen alleged to have been supporting our enemy. Ex parte Quirin was the 1942 case of the eight Nazi saboteurs who were captured in the United States. One, Herbert Haupt, was an American citizen, so what the Court had to say in Quirin applies equally to Hamdi, Padilla, the Buffalo Six, and the Portland Six.

In Quirin, the Court made the distinction between “lawful combatants” and “unlawful combatants.” (Sometimes in the opinion the word “belligerent” is used in place of “combatant.”)

Lawful combatants are subject to capture and detention as prisoners of war . . . . Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

What, then, is the difference between “lawful” and “unlawful” combatants?

The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war. [Emphasis added].

The Court added:

Our government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege, including [emphasis added] those who though combatants do not wear "fixed and distinctive emblems" [uniforms].

This distinction drawn by the Quirin Court is obvious: An enemy fighter captured on the field of battle in uniform is a lawful combatant/prisoner of war; an enemy fighter captured not on the field of battle not in uniform is an unlawful combatant. The difference between the two goes a long way to explaining the recent treatment of John Walker Lindh, and how the government has characterized and handled Hamdi, Padilla, the Buffalo Six, and the Portland Six.

Between the time of Lindh’s capture at the prison revolt in Afghanistan and his indictment in Virginia, the government hedged about how the prisoner was to be characterized. Given the Quirin analysis, Lindh was clearly a “lawful combatant,” and as such could have been deemed a prisoner of war. (The 1946 Ninth Circuit Court of Appeals case of In re Territo made it clear that American citizenship did not preclude one fighting for the enemy [there, the Italians] from being classified and treated as a POW.)

However, because Lindh was an American citizen (though a POW), he was also subject to the United States criminal justice system. For reasons to which we are not privy – but which certainly included tactical and political considerations, such as the ability to squeeze him for intelligence information through the threat of life imprisonment – the decision was made to indict Lindh in a federal court.

Hamdi is in much the same position as Lindh. He was captured on the battlefield, in “uniform,” armed and fighting for the Taliban/al-Qaeda. Taken initially to Guantanamo, when his American citizenship was verified Hamdi was then incarcerated in a stateside Navy brig. Although some have loosely characterized Hamdi as an “unlawful combatant,” under the Quirin analysis he is a “lawful combatant,” and thus a prisoner of war. Even though the Geneva Convention may apply to him, he can be held until the end of hostilities. – and he may well be. And even though, like his fellow lawful combatant, John Walker Lindh, Hamdi, as an American citizen, could be charged in a federal court with the same crimes as was Lindh, the government is under no obligation to do so. It will not be surprising, however, if that’s exactly what happens to Hamdi once the government is through with him. If it does, Hamdi can expect the same fate in a federal court as Lindh. American citizen POWs captured while fighting with our enemies bear the burden of that citizenship, no matter that they are also prisoners of war.

Jose Padilla is a different case. This American citizen was arrested in the United States, not wearing an enemy uniform, on what the government has characterized as “a reconnaissance mission” for a dirty bomb attack on the United States in behalf of al-Qaeda. Although the government has characterized Padilla as an “enemy” combatant, the better description would be “unlawful” combatant – meaning that he came here, out of uniform, as a spy. As such, while his citizenship will save him from a military tribunal, it can not save him from the federal justice system where among other charges he could face one of treason..

Although there is an understandable tendency to apply the Padilla analysis to the Buffalo Six and the Portland Six (neither Walker nor Hamdi are applicable because the Six were not captured abroad fighting for our enemy), the dirty bomber and the latter two cases are quite different. Whereas Padilla is alleged to have entered the United States with a hostile intent (and apparently there is evidence to support that allegation), there is no such allegation against the Buffalo Six. Indeed, the government has said expressly that it has no idea what the Buffalo “sleepers” were up to. That lack of evidence explains two things: why they have been put into the domestic criminal justice system (like Walker), and why they have been charged “only” with providing and conspiring to provide “material support” to terrorists.

Just as the Padilla case is different from the two “Six” cases, they are different from each other. In the Buffalo case, the defendants face “material support” charges. In the Portland case, the defendants are charged with a federal statute being used against alleged terrorists by the government for the first time. Under Title 18, United States Code, Section 2384, the Portland Six have been indicted for conspiracy to levy war against the United States under Title 18, United States Code, Section 2384. The pertinent part provides:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them . . . they shall each be fined under this title or imprisoned not more than twenty years, or both.

These five cases – Lindh, Hamdi, Padilla, the Buffalo Six, and the Portland Six – tell us several things that will become more important as American intelligence, law enforcement, and homeland security, root out additional citizens who are accused of aiding terrorists and terrorist organizations.

If Americans like Lindh and Hamdi are captured on a battlefield fighting for our enemy, at the least they will be characterized as “lawful combatants” despite their citizenship, and treated as prisoners of war. At most, they will be indicted and tried in our domestic criminal justice system.

If an American like Padilla is found in this country (obviously not wearing an enemy uniform) and there is evidence of hostile intent, he will be characterized as an “unlawful combatant,” and can be treated as a spy (as was Haupt). He may even be indictable for treason.

In cases involving Americans like the Buffalo Six and the Portland Six, where there is no evidence of spying or intent to do harm within the United States, the citizens will be indicted, at the least, under the “material support” statutes and will suffer the same fate as Lindh already has. At most, as in the Portland Six case, even without the terrorist training the Buffalo Six underwent in Afghanistan, if there is an agreement to train and to then fight Americans, it now appears that the government may be disposed to indict for conspiracy to levy war. And that charge is only one step away from a charge of treason.

If any of the current or future alleged terrorist defendants quarrel with the government’s characterization of them, they will be met with the holding of the Supreme Court of the United States in Quirin: Presidential classifications – lawful combatant, unlawful combatant, or whatever – made by our President as Commander-in-Chief during wartime when our Nation confronts grave danger, will not be set aside by the courts “without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.”

Henry Mark Holzer, Professor Emeritus at BrooklynLawSchool, is a constitutional lawyer and author
most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A
Conservative’s
Perspective.

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